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Reportable IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

Civil Appeal No 6022 of 2019 (Arising out of SLP(C) No 24021 of 2013)

Madhusudan Bhanuprasad Pandya .... Appellant(s) Versus

State of Gujarat & Ors ....Respondent(s)

WITH Special Leave Petition (C) No 16944 of 2013

J U D G M E N T  

Dr Dhananjaya Y Chandrachud, J

1 Leave granted1.

2 The appeal arises from a judgment and order dated 24 January 2013

of a Division Bench of the High Court of Gujarat, affirming the dismissal of

a Writ  Petition by the Single Judge. On 7 July 2005,  the Single Judge

dismissed a Writ  Petition filed by the appellant seeking to set aside an

order of the State Government rejecting an application for exemption under

Section 20 of the Urban Land (Ceiling and Regulation) Act 19762.   

3 The appellant claims to be engaged in the business of manufacturing

1 SLP(C) No 24021 of 2013 2 “Act of 1976”

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cement  pipes through M/s  General  Cement  Pipe Company Limited3 on

land bearing Survey No 288/4 admeasuring 5160 sq m situated at village

Chandlodia,  Taluka  City  District,  Ahmedabad.  The  appellant  claims

leasehold rights in the land under a rent note dated 27 March 1975. Upon

the enactment of the Act of 1976 on 12 September 1976, Form I under

Section 6(1) was submitted on behalf of the Company, declaring that the

land was leased from the original owners. Village form No 7/12 contained

an entry for the years 1979-80 and 1980-81 to the effect that the land had

been put to non-agricultural use without permission. As a result, by virtue

of the provisions of Section 2(q), the land upon which construction had

been put up was liable to be considered as vacant land. On 26 November

1982,  a  draft  statement  under  Section  8(1)  was  issued.  On 26 August

1985,  the  competent  authority  under  Section  8(4)  declared  land

admeasuring 4160 sq m as excess vacant land. On 17 September 1985, a

final statement was issued under Section 9. A notification under Section

10(1)  was  published  on  31  January  1986.  This  was  followed  by  a

notification  under  Section  10(3)  on  6  December  1986.  A notice  under

Section 10(5) was issued on 6 March 1987. On 6 July 1990, the competent

authority issued a notice under Section 10(6) intimating that possession of

the excess land would be taken over.

4 At this stage, on 19 July 1990, the appellant filed an application for

exemption under Section 20.

5 According to the appellant, on 23 July 1990, the Company instituted a

3  “Company”

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suit4 before the Civil Judge, Senior Division, Ahmedabad in which an order

of status quo was granted on the same day. The  case of the appellant is

that on 24 July 1990, possession of the excess land was purported to be

taken over under a valid panchnama, inspite of the order of the Civil Court.

On 20 July 1990, the order of the competent authority dated 26 August

1985  declaring  the  land  as  excess  vacant  land  was  challenged  in  an

appeal  under  Section  33  before  the  Urban  Land  Tribunal5.  On  31

December 1990, the Tribunal dismissed the appeal on the ground that the

delay  of  over  four  years  had  not  been  satisfactorily  explained.  On  1

September 1992, an order was passed under Section 11 in the matter of

compensation.

6 On 3 March 1998, Special  Civil  Application6 No 1584 of 1998 was

filed by the appellant under Article 226 of the Constitution before the High

Court of Gujarat seeking the following reliefs:

“(A)  This  Hon’ble Court  may be pleased to issue a writ  of mandamus or a writ in the nature of mandamus or any other appropriate writ,  order or  direction directing the respondent authorities to grant appropriate land (at least 3000 sq. mtrs.) or  any  other  appropriate  measurement  of  land  which  this Hon’ble Court deem fit and proper, to the petitioner firm so that the manufacturing activities may be carried on properly, on merits and in accordance with the provisions of the said Act.

(B) The respondent authorities may be restrained from taking possession  of  the  land  bearing  Survey  No.  288/4 admeasuring 5160 sq. mtrs. situated at village Chandlodiya, Taluka City District Ahmedabad till pending hearing and final disposal  of  the  application  under  Section  20  of  the  Act, pending before the Revenue Secretary or the status-quo with regard to the possession of the said land may be maintained by the respondent authorities, till the admission, hearing and

4 Regular Civil Suit No 469 of 1990 5 “Tribunal” 6  “SCA”

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final disposal of this petition.”

7 By an order dated 3 July 1998, the High Court disposed of the above

SCA with a direction to the State Government to expeditiously decide the

appellant’s  application  under  Section  20.  On  5  October  1998,  the

application under Section 20 was rejected in view of the fact that the land

had  vested  in  the  State.  Thereupon,  the  appellant  filed  another  Writ

Petition  being  SCA No  9057  of  1998  challenging  the  rejection  of  the

application under Section 20. The reliefs that were sought before the High

Court were in the following terms:

“(A) This Hon’ble Court would be pleased to issue a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, order or direction and be pleased to quash and set  aside the order  passed by the State Government, dated  5th October,  1998  (Annexure  “G”)  and  further  be pleased to direct the respondents, their agents and servants to  grant  the  application  preferred  by  the  petitioner  under Section  20  of  the  Urban  Land  (Ceiling  &  Regulation)  Act, 1976 as prayed for.”

8 By an order dated 16 July 1999, a Single Judge allowed the above

SCA.  However, in a Letters Patent Appeal filed by the State, the Division

Bench, by an order dated 3 August 2004, set aside the order dated 16 July

1999 and remitted the writ proceedings back to the Single Judge for fresh

disposal. Upon remand, a Single Judge of the High Court dismissed the

SCA by  a  judgment  dated  7  July  2005.  Insofar  as  is  material  to  the

controversy in the present case, the Single Judge held thus:

“From the materials on record it  is  clear  that  the petitioner himself has averred in the petition that the orders passed by the authorities under the said Act declaring 4160 sq. mtrs. of land of the petitioner, is excess vacant land, had become final and the petitioner had not challenged the same before any authority or Court. In para 10 of the petition, the petitioner has

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in  fact  stated  that  after  declaring  the  excess  land,  further procedure was also initiated by the respondent no.2 authority and ultimately  the land is  vested  in  the  State Government under the provisions of the said Act. This is a clear admission on the part of the petitioner. Nowhere in the petition or in the rejoinder the petitioner has stated that no notice was received by the petitioner from the Government regarding taking the possession of the land in question. Despite a clear averment in the affidavit in reply on behalf of respondent no. 2, in the rejoinder  affidavit  the  petitioner  has  not  controverted  this important  aspect  of  the  matter.  It  is  thus  clear  that  entire procedure of vesting the land in Government and taking the possession  thereof  under  Section  10  of  the  said  Act  was completed way back in the year 1990. The learned advocate for  the petitioner  could not  state whether  these facts  were brought to the notice of this Court in Special Civil Application No.1584/1998 which came to be disposed of by order dated 03.07.1998. In that view of the matter and in view of the fact that the question of the possession of the petitioner was not directly at issue in the said litigation, I am unable to ignore the overwhelming material on record in the present petition to the effect that indisputably, the possession of the land in question was  taken  by  the  Government  and  after  passing  through several stages, land had vested in the Government. In that view of the matter, it is not possible to accept the contentions on behalf of the petitioner that upon repeal of the said Act, the proceedings should abate.  The impugned order  passed by the  Government  rejecting  the  application  of  the  petitioner under Section 20 of  the said Act  also cannot be interfered with. The learned A.G.P. Shri P.R. Abichandani relies on the decision of the Learned Single Judge of this Court in the case of Vipinchandra Vadilal Bavishi & anr. V/s. State of Gujarat & ors.  reported  in  2002  (3)  GLR  page-2592,  wherein  the Learned Judge had relied on the Panchnama of taking over of the  possession  supported  by  the  affidavit  filed  by  the competent  authority  as sufficient  proof  that  possession has been  taken  over.   The  learned  A.G.P.  Shri  Abichandani pointed out that the said decision of the Learned Single Judge is based on the decision of the Hon’ble Supreme Court in the case of M/s. Larsen and Toubro Ltd. etc. v/s State of Gujarat and ors. reported in AIR 1998 SC 1608 wherein the Hon’ble Supreme  Court  has  upheld  the  validity  of  Panchnama  of taking possession even when the panchas had subsequently filed  an  affidavit,  with  their  signatures  obtained  on  blank papers and they had not gone to the site.” (Sic)

9 Aggrieved by the order of the Single Judge, the appellant preferred a

Letters Patent Appeal before the Division Bench, which has ended in the

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impugned order dated 24 January 2013. The submission in support of the

appeal is that possession could not have been taken over in breach of the

order of injunction passed by the Civil Court and was in fact not taken over.

Hence, ceiling proceedings have lapsed upon repeal of the Act of 1976.   

10 At this stage, it would also be necessary to note that a companion

Special Leave Petition7 has been filed by the original owners, the landlord

from whom the appellant in the main appeal claims his interest under a

rent  note.  The  owners  got  themselves  impleaded  before  the  Division

Bench in the Letters Patent Appeal. It was urged on their behalf that in

view  of  the  order  which  was  passed  in  the  appeal  under  Section  33

preferred by the land owners, there was no occasion for them to adopt any

proceedings of their own under Article 226 of the Constitution and it was

only  upon  the  judgment  of  the  Division  Bench  that  it  has  become

necessary for the land owners to assert their grievance before this Court.

The land owners have submitted that in the absence of actual taking over

of possession, the proceedings under the Act of 1976 would stand abated

by the repeal of the legislation.  Moreover, it was urged that the possession

was purportedly taken over even before the order under Section 10(2) was

passed.

11 In dealing with the rival submissions, it is necessary to analyse the

correctness of the grievance that possession was purported to have been

taken over on 24 July 1990 in spite of a restraining order of  status quo

passed by the Civil Court on 23 July 1990. It was urged that irrespective of

7 SLP(C) No 16944 of 2013

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the maintainability of the suit, so long as the order of status quo held the

field, the authorities were duty bound to comply with it. In dealing with this

submission,  it  is  necessary  to  note  that  the  order  dated  23  July  1990

specifically adverts to the fact that while the first to third defendants had

appeared, the fourth defendant had neither appeared nor filed a reply. The

defendants  who  appeared  before  the  Court  were  the  land  owners

themselves.  The  fourth  defendant  was  the  Deputy  Collector  and  the

competent authority under the Act of 1976.

12 Mr Preetesh Kapur, learned Senior Counsel appearing on behalf of

the State of Gujarat, submitted that the suit which was instituted before the

Civil  Court  besides  being  not  maintainable,  appeared  to  be  clearly

collusive. Quite apart from this submission of the State, there is nothing to

indicate  that  a  copy  of  the  order  of  status  quo was  served  on  the

competent authority before possession was taken over on 24 July 1990. In

this context, it is necessary to advert to the pleadings of the appellant in

SCA No 9057 of 1998 with reference to the suit and passing of the order of

status quo.  In paragraph 9 of the SCA before the High Court, it was stated

on behalf of the appellant that:

“Petitioner  submits  that  the  petitioner  firm  has  filed  one Regular Civil Suit No.469 of 1990 in the Court of the learned Civil Judge (S.D.), Ahmedabad, at Mirzapur, praying inter alia, injunction restraining the landlords and the respondent no.2 from taking possession of the suit land from the petitioner's firm.  The  learned  Judge  was  pleased  to  grant  interim injunction as prayed for  against  the landlords and not against  defendant  No.4,  i.e.  the  Competent  Officer  and Deputy Collector, Ahmedabad. However, due to extra care and  caution,  the  petitioner  has  submitted  one  purshis dated 3-3-1998 before the learned Judge, declaring that the present respondent No.2, i.e. the Competent Officer and Deputy Collector, (U.L.C.) Ahmedabad, be deleted as

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defendant No.4 from the said suit No.469 of 1990.”      (Emphasis supplied)

13 Hence, the averment of the appellant before the High Court was that

an interim injunction was sought in the suit against the landlords and not

against the competent authority under the Act of  1976. Moreover,  as is

stated in the above extract, on 3 March 1998 the competent authority was

deleted from the array of parties to the suit. From this course of events,

there can be no manner of doubt that the institution of the suit was, as

learned Senior  Counsel  for  the State has urged,  a collusive attempt to

thwart  the State from taking possession on the next day. In any event,

there is nothing on record to indicate that the order of status quo was ever

served on the competent authority under the Act of 1976. An attempt has

been made to suggest that the panchnama dated 24 July 1990 shows that

possession could not be taken. The Division Bench of the High Court has

analysed the panchnama and has rejected the claim that a ‘tick mark’ has

been placed on one of the three options in the panchnama to indicate that

due to the presence of structures on the land, possession could not be

taken over. In view of the provisions of Section 2(q), it was urged on behalf

of the State that the land was liable to be treated as vacant land since the

structures on the land were not  authorised,  in  the absence of  required

permission for non-agricultural use. We see no reason to take a view at

variance with what has been held by the Division Bench of the High Court

since it is evident from the record that possession of the land was taken

over on 24 July 1990. The Single Judge of the High Court has also dealt

with this aspect of the matter. Above all, the pleadings of the appellant in

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SCA No 9057 of  1998 leave no manner of  doubt  that  possession was

taken over on behalf of the State. The Single Judge observed that despite

a clear averment in the affidavit in reply, the rejoinder which was filed on

behalf of the appellant had not controverted this important aspect of the

matter.  Thus,  for  the  above  reasons,  we  are  unable  to  accept  the

submission which has been urged on behalf of the appellant.

14 Significantly, the relief that was sought before the High Court in the

first SCA (SCA No 1584 of 1998) was for the grant of “appropriate land” to

the appellant and an order of injunction restraining the State from taking

over possession until the application under Section 20 was disposed of.

The Division Bench, in the course of its judgment, has dwelt on the clear

suppression in the above SCA, of the fact  that possession had already

been taken over. That apart, it has been correctly urged on behalf of the

State that  upon the repeal  of  the Act  of  1976 by the Repealing Act  of

19998, proceedings under Section 20 would not survive. Moreover, in the

absence of a challenge to the order of vesting, to the consequence that

followed  under  Sections  10(5)  and  10(6)  and  in  the  absence  of  the

question of possession being squarely placed in issue, it was not open to

the appellant to canvass that aspect.

15 Section 3(1) which contains the saving provision in the Repealing Act

provides as follows:

“3. Saving.— (1) The repeal of the principal Act shall not affect— (a) the vesting of  any vacant  land under sub-section (3) of Section 10, possession of which has been taken over by the

8  “Repealing Act”

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dismissed. There shall be no order as to costs.

SLP(C) No 16944 of 2013

19 Though the petitioner in this Special Leave Petition was not a party to

the  proceedings  before  the  Single  Judge,  it  did  not  question  the

correctness  of  the  order  of  the  Single  Judge  and  merely  got  itself

impleaded as a respondent to the Letters Patent Appeal. We have already

dealt  with  the  merits  of  the  challenge  and  have  found  no  substance

therein.   

20 For the above reasons, we see no merit in the Special Leave Petition.

The Special Leave Petition is accordingly dismissed. No costs.

…………...…...….......………………........J.                                                                     [Dr Dhananjaya Y Chandrachud]

…..…..…....…........……………….…........J.                              [Indira Banerjee]

 New Delhi;  August 01, 2019